### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00073- CV

Ron Strybos and Texas Division , Sons of Con federate V ete rans, Inc., Appellan ts

v. Rick P err y, in h is Of

fi cial Capacity as G overnor of the State of T exas; Wallace Jefferson, in his Ad m inis trat ive Capacity; and Edw ard Johns on, in h is Of fi cial Capacity as Executive D irec tor of the Texas F acilities Com m ission , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-0 0-0 0167 8, H ONO RAB LE SCO TT H . JENK INS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Ron Stry bos and Texas Divisio n , Sons of Confeder ate Veter ans, Inc. appea l
t he summary judgme nt g rante d ag ainst them on their claims that two plaques wer e wrong full y

remove d from the Texas Supreme Court Building

. They sued three State of Texas officia ls in their administrative or officia l capaci ties—the g overnor , the chief justice of the supreme court, and the executive direc tor of the ag ency “in char g e and control” of state buildings. Appellants contend that the remova l of the plaques, and the installa t i o n o f n ew plaques, was in violation of the
state constitution and statutes perta ining specific ally to the Supreme Court Building , and g ener ally in violation of the manner in which the State is require d to handle historical marke rs. We aff irm the judgme nt in part, reve rse a nd rende r judg ment in part, and r ever se and r emand in par t.The parties ag ree reg arding much of the history underly ing this dispute, but disag ree reg arding what law applies and how the applicable law aff ects the fac ts pr esente d. In 1954, voters amende d the Texas Constit ution to permit funds in a pension benef itting Confed er at e veter ans and their widows to be transfe rre d to the State Building Fund. The amendment provided that the first major structure built “sha ll be known and desig nated as a memorial to the Texans who serve d in the Armed For ces o f t h e C o n fe derate States of Americ a, and shall be devoted to the use and occupa ncy of t he S upreme Court and such other courts and S tate age ncies as m ay b e p rovided by law.” See Tex. Const. art. I I I , § 51-b(c ) (re peale d 1978). The enabling leg islation pa ssed in 1957 1 provided that the building

shall be known and proper ly desig nated b y t h e State Building Commi ssion as a memorial to the Texans who serve d in the Armed Service s of the Confeder ate States of Am eric a, and a suitable corne rstone or plaque, or other proper means of desig nation, shall be integ rate d into the construction of the building to eff ectua te this memorial purpose

.
See former Tex. Civ. Stat. Ann. art. 678m, § 11. The Supreme Court Building was constructe d with 2

a corne rstone, laid in 1957, that contains copies o f t h e constitutional amendment and statutes desi gnating the building as a memorial to Texas Confeder ate veter ans, a roster of the office rs of the United Daug hters of the Confeder acy , a Confed er at e flag , and Confeder ate curr ency . The

See Act of A

pril 30, 1953, 53d L eg ., R.S., S .J .R. 10, 1953 Tex. Gen. L aws 1172. 1 See Act of J une 24, 1955, 54th L eg ., R.S., ch. 5 1 4 , § 11, 1955 Tex. Gen. L aws 1298, 2 1300, repea l ed b

y Ac t of May 26, 1979, 66th L eg ., R.S., ch. 773, § 99.05, 1979 Tex. Gen. L aws 1908, 1960. 2supreme c ourt moved into the building in 1959. I n the mid-1960s, two plaques, the c ost of which

was included in the orig inal contra ct price for t h e b u i lding, wer e installed in the foy er of the Supreme Court Building

. One plaque stated, “De dicated to Texans who serve d the Confeder acy .” The other contained the following quote from Ge nera l Robert. E. L ee: “I rely on Texas reg iments in all tight place s, and I

fea r I have to c all on them too often. They have f oug ht gr andly , nobly .” I n 1978, voters amende d the constitution t o repe al provisions conce rning the State Building Commi ssion, including article I I I , section 51-b, the provision for the Supreme Court Building

. I n 1979, the leg islature repe aled the enabling statute conce rning the Supreme C o u rt Buil d i n g. See Act of May 26, 1979, 66th L eg ., R.S., ch. 773, § 99.05, 1979 Tex. Gen. L aws 1908, 1960. I n J une 2000, the orig inal plaques wer e remove d and repla ceme nts installed in what was de scribed in a

n interag ency

e-ma il a s “‘r outine maintenanc e’ or der.” One of the new pla ques states, “The courts of Texas are entrusted with pr oviding equal justice under the law to a ll pe rsons reg ardle ss of rac e, cre ed, or color.” The other states, “B eca use this building was built with monies from the Confeder ate Pension Fund, it was, at that time, desig nated as a memorial to the Texans who serve d the Confede rac y .”

Appellants filed suit, alleg ing that the remova l of the orig inal plaques and installation of the new ones violated Texas Constit ution article I I I , section 51-b; the antiquities code (cha pter 191 of the natura l resour ces code) ; open meeting s provisions; and the go v er n m en t code. Appellants 3

The suit was initially filed ag ainst J im Muse, in his officia l capa city as Ex ecutive Direc tor 3 o f t h e T ex as General S ervic es C ommissi on. Eventually , the gover nor and the chief justice of t he supreme c ourt wer e adde d as def endants. 3reque sted a decla rato ry j u d gment that the violations occur red as well as a mandatory injunction order ing remova l of the new dedication plaque and the reinstallation of the orig inal plaques, or the installation of the orig inal plaques a t a prominent position in the buildi ng .

Both sides filed motions for summary judgme nt. Appell an t s contend that the undisputed fac ts show that none of the appellee s or their employ ees wer e leg ally authorized to

remove the orig inal plaques and i n s t al l new ones without a public hear ing. The appellee s soug ht summary jud gm ent alleg ing, in part, that the law on which appellants base their claims does not apply to the removal of t he original plaques or t he ins tallation of t he new plaques. The trial court g rante d the appe llees’ motion for summary judgme nt and denied a

ppellants’ motion. We revie w summary judgme nts de novo. Provi d e nt Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003) . A traditional motion f or summary judgme nt should be g rante d only when the movant establishes that there is no g enuine issue as to any materia l fac t and that it is entitled to judgme nt as a matter of law. See Tex. R. Civ. P. 166a(c ); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W

. 2 d 546, 548 (Tex. 1985). When both parties move for summary judgme nt and the trial court g rants one party ’s motion and denies the other party ’s, as occur red in this case , the revie wing court should revie w both sides’ summary judgme nt evidenc e and deter mine all questions prese nted. FM Props. Operating Co. v. City of Aust i n , 2 2 S

. W

. 3 d 868, 872 (Tex. 2000). I f the district court er

red, w e will reve rse a

nd rende r the judg ment the cour t should have re ndere d. Id. Appellants conte nd that the appe llees’ a ctions violated the constitutional provision authorizing construction of the S upreme Court Building and the enabling leg islation that

4acc ompanied it. See former Tex. Const. art. I I I , § 51-b; former Tex. Civ. Stat. Ann. art. 678m. The

amendment a

uthorized transfer

of funds from the Confeder ate Pension F und to the State Building Fund, require d th at the first building constructe d with those funds be “known and desig nated as

a memorial to the Texans w ho serve d in the Armed For ces of the Confeder ate States of Americ a,” and that the building be used by the supreme court. For mer Tex. Const. art. I I I , § 51-b. The statute additionally specifie d that “a suitable corne rstone or plaque, or other proper means of desig nation, shall be integ rate d into the construction of the building to eff ectuate this memorial purpose.” For mer Tex. Civ. Stat. Ann. art. 678m. These fo rm er constitutional and statutory provisions wer e undisputedly repe aled m o re than two deca des befor e the orig inal plaques wer e remove d and the

new ones installed, howeve r. The re peal of a statute doe s not affe ct any rig ht acquire d or accrue d under it. Tex. Gov’t Code Ann. § 3 1 1

. 0 3 1 (West 2005). When a cause of action is based on a statute, howeve r, t he repea l of t hat s tatute wit hout a savings clause for pending s u i t s immediately abrog ates the rig ht of action unless the rig hts have become vested. See Smallwood v. United States , 68 F.2d 244, 246 (5th Cir. 1933); Quick v. City of Austin , 7 S.W .3d 109, 128 (Tex. 1998). Neither amendment contained a saving s clause prese rving rig hts or direc tives of the repe aled provisio ns. Tex. S.J

. Res. 48, § 1, 65th L eg ., R.S., 1977 Tex. Gen. L aws, 3367, 3367 (proposa l); 1979 Tex. Gen. L aws 3266 (vot e); Act of May 26, 1979, 66th L eg ., R.S., ch. 773, § 99.05, 1979 Tex. Gen. L aws 1908, 1960. Thus, if the provisions have no r emaining eff ect, they wer e not violated. We need not decide if the former provisions have any rema ining forc e beca use, even if their repe al was a mere housekee ping maneuve r, the undisputed evidenc e shows that the a ppellees’ actions did not violate the former provisions. The constitution and the statute require d that the

5Supreme Court Building be dedica ted to Confeder ate veter ans. I t was and still is. The languag e of the dedication has chang ed and the plaque memorializing the dedication has chang ed. The new dedication plaque states that the bui l d i n g “wa s, at that time, desig nated as a memorial to the Texans who serve d the Confede rac y .” While one m ight infer from that phrasing that the building is no longe r so dedicated, the plain meaning of the words is that, in 1957, the building was dedicated

as a memorial to the Texans who serve d the Confeder acy . That is consistent wi t h the former constitutional and statutory mandates and is cons i s t en t with the fac ts in the rec ord. The plaque does not state that the building has been undedicated or rede dicated. The news rele ase issued by the Gene ral Service s Commi ssion on J une 12, 2000, expressly states, “The building is still dedicated to Texas Civil War veter ans.” The constitutional mandate that the building be known and desig nated 4

as a memorial to Texans who serve d in the Armed For ces of the Confeder ate S t at es o f Am eric a

rema ins fulfilled. Even if rig hts under the prior constitutional and statutory scheme are at issue here , that scheme require d a dedication of the building to Texas Civil War veter ans. I t did not require that the dedica

tion be immutable over time. The appellee s did not violate former constitution article I I I , section 51-b. The former statute additionally require d that a suitable c o r n e r stone or plaque, or other proper means of desig nation be integ rate d into the construction. The statute did not specify that any p ar t i cular wording be included on the commemora tive fea ture, that any commemora tive feat u re installed could not be repla ced, or that any particula r administrat i v e p ro cedur e must be followed

We note that the news r elea se wa s issued three da y s after this suit was filed. 4 6to remove or repla ce the commemora t i ve feature. The orig inal corne rstone rema ins undisturbed,

integ rate d into the building. The new plaque not i n g the building’s desig nation as a Confeder ate memorial i s attache d to the bui lding where the original p l aque noted the dedication. The original plaque containing the L ee quote, whil e complementing the orig inal dedication plaque, did not itself speak t o the dedication. I ts remova l, there fore , did not infring e on the constitutional and statutory mandates reg arding dedica tion and commemora

tion of the dedication. Although the

new plaque reg arding the court sy stem did not addre ss the dedication req u i re ment, neither the

co n s t itutional nor statutory provision prohibited the installation of plaques unrela ted t o t h e dedicati o n o f t h e building. The appellee s’ remova l of the orig inal plaques and installation of

new one s did not viol ate f ormer a rticle 678m. Appellants contend that the appellees’ removal of the orig inal plaques viol ated the antiquities code’ s prohibition of damag e or destruction of specifie d ty pes of proper

ty

. See Tex. Nat. Res. Code Ann. § 191.132(b) (West 2001). The antiquities code is intended to protec t and prese rve sites, buildings, and locations of historical, arc heolog ical, educational, or scienti fi c i n t ere st. Id

. § 191.002 (West 2001). Appellants contend that the appellee s violated the following provision: “A person who is not the owner shall not wi l fully injure, disfigur e, remove , or destroy a historical
structure , monument, marker , medallion, or ar tifact without lawful a

uthority .” Id . § 191.132(b). Assuming—without deciding —that the plaques are historical markers under the statu t e, we conclude as a matter of law that section 191.132(b) did not prohibit their remova l by the appellee s. I t is undisputed that t h e S t at e owns the Supreme Court Building

. Appellants
conten d t h at t h e State or the people of the State collectively own the building, not any

7individual—particularly not the appellee s. The people of the State, howeve r, choose repr esenta tives

to conduct their collectiv e b u s iness. The leg islature passes laws, and the executive branc h implements and enforce s the pol icies and mandates embodied therein. The supreme court and it s justices, the g overnor , and the executive direc tor of the g eneral service s commission are , when acting in their officia l or administrative capa cities, the State. See Texas A& M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 8 4 4 (Tex. 2007) (quoting Kentucky v. Graham , 473 U.S. 159, 166 (1985)) (“A

s u i t against a state officia l in his officia l capa city ‘is not a suit ag ainst the officia l persona lly , for the rea l party in interest is the entity .’”)

. Such a suit actua lly s ee k s t o impose liability ag ainst the g overnme ntal unit rathe r than on the individual specific ally named and “is, in all respe cts other than name, . . . a suit ag ainst the entit y . ” Id

. ; s ee also Texas Natural Res. Conservation Comm’n

v. IT-Davy , 74 S.W .3d 849, 855-56 (Tex. 2002)

. The leg islature has decide d that, as custodian of 5
state proper

ty , the Fa cilities Commission has “cha rg e and c ontrol of all public buildings, g rounds, and proper

ty .” See Tex. Gov’t C ode Ann. § 2165.001 (West 2008). Acc ording ly , the removal o f
t h e p l aques at the behest of any of the appellee s acting in their officia l, administrative, or repr esenta tive capa cities did not violate section 191.132 beca use their officia l status rende red them eff ectively acting for the State, the State is undisputedly the owner of t he buil ding, and t he statute place d no rest ri ct i o n o n the rig ht of an owner to remove a historical marke r from the owner ’s proper ty

. This is true even w hen the State is the owne r. 6

Consist ent with this, appellants’ suit is ag ainst the cur rent off icials, not the officia ls w ho 5 made the de cisions in 2000. This case is not controlled by Texas Governme nt Code section 2166.5011. That sec tion 6 define s monument or memorial to include plaques located on state proper ty and honoring a citizen of this state for milit ary or war -re lated service

. See Tex. Gov’t Code Ann. § 2166.5011 (West 2008)

. 8Appell an t s contend that the installation of the new dedication plaque without 7 approval from the Texas Historical Commi ssion violated the statute conce rning construction on state land of monuments or memorials for “Te x as heroe s of t h e C o n fe d erate States of Americ a,” among other events and persons of historical signific ance . See Tex. Gov’t Code Ann. § 2166.501(a) (West 2008). “B efor e the ere ction of a new monument or memorial, the [Tex as Fa cilities Commi ssion] must obtain the approva l of the Texas Historical Commi ssion reg ard i n g the form, dimensions, and substance of, and inscriptions or illust rations on, the monument or memorial.” Id. § 2 1 6 6.501(d). The State argues that this statute does not apply to the new dedication p l aq u e beca use it is not it self a ne w monument or memorial.

Upon its const ru ct i o n , the Supreme Court Building was expressly desig nated as a memorial to the Texans who serve d in the Armed For ces of the Confeder ate States of Americ a. See Tex. Const. art. I I I , § 51-b. Although neither the o l d n o r t h e new dedication plaques comprise
t h e en t i re memorial, the new dedication plaque is new, it is an inscription, it is aff ix ed t o and on the mem o rial, and it is rela ted to the memorial purpose. The rec ord indicates that, afte r 8

The statute permits remova l, reloc ation, or alteration only b y t h e l eg islature, the Texas Historical Commi ssion, or t he S tate P rese rvation B oard unle ss the remova l, relocation, or alteration is made only to acc ommodate construction, repa ir, or improvements. Id. Section 2166.5011 does not apply to the actions in this case , howeve r, beca use it was not enac ted or eff ective until sever al months afte r the plaques wer e chang ed. See Act of May 15, 2001, 77th L eg ., R.S., ch. 377, § 7, 2001 Tex. Gen. L aws 700, 703-04 ( eff

. Sept. 1, 2001). Be cause appellants expressly “have no dispute with, nor reque st remova l of, the first of the 7 two New Plaques reg arding equal acc ess to Texas courts,” we will constrain our revie w to the installation of the new de dication plaque. We note that the Supreme Court Building prese nts an aty pical situation beca

use of its dual- 8 u s e nature

. A classic monument or memorial is constructe d with that single purpos e, an d inscriptions will tend to focus on t h at p urpose. Her e, the building is both a memorial and a 9the re moval of the orig inal plaques, the new dedication plaque is the only plainly visible

acknow l ed gm en t o f t h e memorial nature of the building. We conclude , as a matter of law, that the new dedica

tion plaque falls within the terms of g overnme nt code section 2166.501 regulating the inscription of new m em o ri als. Texas Historical Commi ssion approva l of the new dedication inscription was re quired. Appe llees conc ede that they did not obtain that approval. 9 We conclude that neither the Texas Constit ution nor any cited sta t u te prohibited appellee s from removing the orig inal plaques. We conclude , howeve r, th at t h e go v ernment code require d that the appellee s have the approva l of the Texas Historical Commi ssion befor e installing the new dedication pl aque descr ibing the memorial purpose of the Supreme Court Building

. We aff irm the trial court’s g rant of s u m m ar y j udg ment to the appellee s conce rning the remova l of the plaques. We reve rse the trial court’s g rant of summary j u d gm en t t o the appellee s conce rning the installation of the new dedication plaque. We also reve rse the trial court’s denial of appellants’

re q u est for attorney s’ fee s. We rende r judgme nt decla ring that the appellee s’ installation o f t h e 1 0 working court office an d courtrooms. We constrain our holding to the i nscriptions rela ting to the memorial purpose

. This opinion is limit ed to i nscriptions rela ted to the memorial purpose in dual-purpose structure s. We offer

no opinion on non-memorial inscriptions on dual-purpose structure s. We need not consider whether appellee s’ installation of the new plaque without approva l 9 of the Texas Historical Commi ssion also violated g overnme nt code sections 442.006 and 2165.255 beca use, even if a violation wer e shown, the relief g rante d appellants would be n o g reater. See Tex. R. App. P

. 47.1 (opinio n s should be as brief as prac ticable while addre ssing all issues raised and nec essar

y to the final disposition of the appea l). Be cause the trial court denied appellants’ reque s t for attorney s’ fee s in the context of a 1 0 denial of all of appellants’ reque sted relief , we also reve rse the denial of an awa rd of attorney s’ fee s to appe llants. We rema

nd for the trial court to deter mine what awa

rd of attorney s’ fee s, if any , is equitable and just in light of our holdings and the further proce eding s on the merits. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). 10new dedication plaque without Texas Historical Commi ssion approva l violated Texas Gover nment Code section 2166.501. We rema n d t o the trial court for further proce eding s consistent with this opinion and judgme nt.

G. Alan Waldrop, Just ice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson; Chief J ustice L aw not par ticipating Affir med in part; Rever sed and Rende red in pa rt; Reverse d and Remande d in part Filed: Mar ch 26, 2010

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